U.S. Department of Labor Releases New Family and Medical Leave Act Forms
The U.S. Department of Labor (DOL) recently released new Family and Medical Leave Act (FMLA) forms. The new forms, with an expiration date of May 31, 2018, are available at no cost on the DOL’s website.
Pursuant to the FMLA, covered employers must allow eligible employees to take job-protected, unpaid leave for up to a total of 12 workweeks (and up to 26 weeks of leave to care for certain injured members of the Armed Forces) in a 12 month period for certain qualifying reasons. While covered employers may, but are not required, to use the forms provided by the DOL, covered employers who create their own forms (or adapt the DOL forms) must ensure that all notice requirements are met.
The only substantive change to the DOL forms is incorporation of the Genetic Information Nondiscrimination Act (GINA) safe harbor notice in the Health Care Provider Certification forms, Form WH-380-E, 380-F, 385, and 385-V. According to the GINA regulations, if an employer provides a safe harbor notice when requesting medical certification, any receipt of genetic information will be considered inadvertent and not a violation of GINA. To take advantage of the safe harbor, the new Health Care Provider Certification forms contain in the instructions to the health care provider the following statement:
Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).
For employers who create their own FMLA forms, this should serve as a reminder to check their FMLA forms to ensure they contain an instruction not to provide genetic information.
If you have any questions regarding compliance with the FMLA, please contact Jeffrey Embleton, Amy Kullik, James Budzik or Ann Knuth in our Labor and Employment Group at Mansour Gavin LPA at (216) 523-1500.
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